Commander-centric justice again in the spotlight

Consider this article by Craig Whitlock of the Washington Post. Excerpt:

U.S. military commanders have wielded near-total authority to impose discipline or criminal charges­ since the Revolutionary War, but their role has come under sharp criticism in recent years.

Most commanders have little, if any, legal training. Congress has debated whether some of their powers should be ceded to military prosecutors, especially in sexual assault ­cases.

The Pentagon has vigorously resisted, arguing that commanders need to retain their authority to maintain order and discipline in their units and that they receive plenty of advice from military lawyers.

Lawmakers have started to pay close attention to how commanders deal with sexual assault and harassment. In 2013, members of the Senate raised an outcry after learning of two separate cases­ in which Air Force lieutenant generals had granted clemency to convicted sex offenders. Both generals retired under pressure.

Under military law, there are few hard-and-fast rules that dictate which cases­ should go to trial. Commanders can impose discipline for serious offenses — or order courts-martial for trivial ones. In March, for example, an enlisted member of the Air Force from New Jersey was convicted at court-martial for being six minutes late to a meeting with his commander.

"You need to get out"

This 5-minute video of remarks by the Superintendent of the U.S. Air Force Academy, in response to racist slurs, is powerful:

https://www.youtube.com/watch?v=sxITADfhXnk&feature=youtu.be

Prof. Maggs nominated to the U.S. Court of Appeals for the Armed Forces

Pres. Donald J. Trump

The White House has today announced Pres. Donald J. Trump's nomination of Prof. Greg Maggs to fill the current vacancy on the U.S. Court of Appeals for the Armed Forces:

If confirmed, Gregory E. Maggs of Virginia will serve as a Judge on the U.S. Court of Appeals for the Armed Forces. Professor Greg Maggs currently serves as the Arthur Selwyn Miller Research Professor of Law and Co-Director of the National Security & U.S. Foreign Relations Law LL.M. Program at the George Washington University Law School in Washington, D.C., where he has taught since 1993. At GWU, Professor Maggs teaches and writes in the areas of constitutional law, counterterrorism, military justice, and national security law. He is the co-author of a leading military law casebook, Modern Military Justice: Cases and Materials, and has published two related books, along with dozens of articles in the fields of constitutional law and national security. In addition to his academic work, Professor Maggs serves as a Colonel in the U.S. Army Reserve, Judge Advocate General’s Corps. He received his commission in 1990 and was mobilized from 2007 to 2008. From 2007 to 2017, Professor Maggs served as a reserve trial and appellate military judge. Upon graduation from law school, he served as a law clerk to U.S. Supreme Court Justices Clarence Thomas and Anthony M. Kennedy and to Judge Joseph T. Sneed of the U.S. Court of Appeals for the Ninth Circuit. Professor Maggs earned his A.B., summa cum laude, from Harvard College, where he was inducted into Phi Beta Kappa, and was designated a John Harvard Scholar, and his J.D. from Harvard Law School, magna cum laude, where he served as articles co-chair of the Harvard Law Review. He also earned a Master of Strategic Studies from the U.S. Army War College.

 Congratulations to Prof. Maggs.

Judges of the court have statutory 15-year terms. Nominations are referred to the Senate Armed Services Committee.

Sentencing 101

Here's a test question suggested by this recent case from Australia:

What is the fair and just sentence for a sailor who surreptitiously records a crew member of the opposite sex in the shower? Contested case. (No peeking; you must suggest a sentence before reading the story from the Brisbane Times.)

Rare grant of certiorari at the U.S. Supreme Court

The Supreme Court of the United States today granted three petitions for writs of certiorari in cases decided by the U.S. Court of Appeals for the Armed Forces. At issue are the effect of a 19th century statute that forbids dual office-holding (here, concurrent service on the U.S. Court of Military Commission Review and a service Court of Criminal Appeals), the impact of the Appointments Clause of the Constitution, a claim of mootness, and the Supreme Court's own appellate jurisdiction where the Court of Appeals, having granted discretionary review, vacates that action. (Full disclosure: the editor is among the petitioners' counsel.)

Military correctional reform -- a 20-year anniversary in Israel

Corrections systems are among the least-studied aspects of military justice. Haaretz's Gili Cohen has this interesting article about the IDF's internal prison system. Twenty years ago after an inmates' revolt, reforms are afoot. Excerpt:

The army is hoping to address most of the defects in the military prisons with the move to a new facility currently being built near Beit Lid in central Israel. The military courts will also move to the new compound, named Neve Tzedek (“Oasis of Justice”), meaning soldiers will not have to be moved in handcuffs from the Military Police to the Military Advocate General and the courts – all will be contained within the compound. The number of inmates per cell will be cut from 10 to seven. Still, even in the new compound some inmates will have to live in tents. “It’s the army, after all,” a senior officer said.

Military officers holding civil offices

Prof. Steve Vladeck

Global Military Justice Reform contributor (and University of Texas law professor) Steve Vladeck has this Lawfare post on a brace of cases in which the Supreme Court is asked to rule on the impact of an obscure but important federal law. [Full disclosure: the editor is a co-counsel.] Excerpt:

We often take for granted the principle of civilian control of the military—and the related but distinct corollary disfavoring military control of civilian affairs. Much like the better-known (and eight years younger) Posse Comitatus Act, the civil office ban codified at [10 U.S.C.] § 973(b)(2) is an important statutory codification of this larger principle—or, at least, has been for its first 147 years on the books. What’s at stake in the petitions the Supreme Court is set to consider on Monday is not just the fate of the four military officers whose service as CMCR judges has been called into question, but the fate of the civil office ban writ large. Lots of other cases have generated (and will generate) more headlines, but these petitions present what is unquestionably the most important civil-military relations question that the Justices have confronted in decades, no matter how it ought to be resolved.

Parliamentary question about Canadian summary trials

On 21 September 2017, Canadian Senator Colin Kenny asked the Senate's Government Leader a question about Canadian military summary trials:

National Defence

Military Judicial Process

Hon. Colin Kenny: Thank you, Your Honour. Honourable senators, I have a question for the Leader of the Government in the Senate.

My question is about the Canadian military summary trial process and the denial of Charter rights to members of the Canadian Armed Forces.

Under the summary trial process, the commanding officer of the accused individual presides over the tribunal. The summary trial process, such as it is, has no rules of evidence. It also allows the presiding officer to infer guilt should the accused refuse to answer questions that may incriminate him or her. It totally lacks the right to protection from self-incrimination. It does not require a transcript or proceedings, which makes an appeal impossible.

Finally, the assisting officer — a person assigned to be helpful to the accused — is not a lawyer and does not have the benefits of solicitor-client privilege. And the most egregious is the ability of the presiding officer to sentence the accused to confinement for up to 30 days in a ship or a barracks with the possibility of a criminal record.

What plans does the government have to bring this military legal process of the Canadian Forces into line with the Canadian Charter of Rights and Freedoms and those afforded to other Canadians?

Hon. Peter Harder (Government Representative in the Senate): I thank the honourable senator for his question. I will endeavour to seek an answer from the appropriate authorities and raise it personally with the ministers.

Network for Military Prosecutors

Did you know that the International Association of Prosecutors has created a Network for Military Prosecutors. Information about NMP can be found here. According to the website:

The responsibility for the prosecution of cases concerning military personnel varies across jurisdictions. In some countries, prosecuting offences committed by military personnel is left to the respective military Justice system whilst others choose to entrust the civilian Justice system with this important task. 

The Network of Military Prosecutors seeks to embrace and provice a forum for discussions and exchange of experiences for prosecutors involved with military prosecutions, whether they are civilian or military.

How NMP can benefit you:

The NMP aims to benefit military criminal law practitioners from civilian or military jurisdictions. This network is unique because the IAP is the only global organization of prosecutors that comprise prosecutors from the military and the civilian justice systems. 

NMP is available to all members of the IAP dealing with military criminal cases, including prosecutors belonging to organisational members. 

Members of the IAP will enjoy password protected access to a range of resources and networking opportunities: 

• A prosecutor directory helping you locate peers around the world; 

• A discussion forum facilitating the exchange of information and best practice;

• Background information on the criminal justice systems in those jurisdictions dealing with military criminal cases;

• A means to identify new trends in international law; 

• A forum to discuss and exchange case law and legislation; 

• A means to enhance international cooperation.

Thanks go to Lars Stevnsborg, the Danish Military Prosecutor General, for the information. 

White nationalism and military service

What to do when active duty military personnel engage in white nationalist activity in a civilian setting? The question is currently confronting the U.S. Marine Corps, as this article reports. Excerpt:

Staff Sgt. Joseph Manning, of the Marine Corps Engineer School at Camp Lejeune, was charged with first-degree trespassing after unfurling a banner with the letters “YWNRU” — short for “You Will Not Replace Us,” the favorite maxim of the white nationalist group Identity Evropa established by Marine vet Nathan Damigo in 2016. Manning had mounted the flag in Graham, North Carolina, across from town’s historic courthouse during a rally by Alamance County Taking Back Alamance County, a neo-Confederate group. 

Manning, a Purple Heart recipient who served in both Iraq and Afghanistan, is currently “in the process of being administratively separated,” a Training and Education Command spokesman told Marine Corps Times. Sgt. Michael Chesny, the EOD technician from Marine Corps Air Station Cherry Point who drove hours with Manning across North Carolina to participate in the stunt, has already been slapped with an administrative punishment.

If local authorities prosecute, what if anything should the Marine Corps do? 

Military justice bookshelf

Pres. James A. Garfield

Read a good law review article lately?

Here's one military justice mavens won't want to miss: Col. James A. Young, USAF (Ret), The President, His Assassin, and the Court-Martial of Sergeant John A. Mason, 77 A.F. L. Rev. 1 (2017), available here.

Will Nigeria reform its military justice system?

Femi Falana, SAN

We learn more here about the call to update -- review? reform? repeal? -- Nigeria's Armed Forces Act.

The arc of reform

“From 1775 on, there’s been people that have stepped up and said, ‘This doesn’t make sense. We need to change it.’ And from 1775 on, those calls for reform have been met with the same refrain from the military, which is, if commanders don’t have this authority, people won’t listen to them, soldiers won’t listen to them, and we need this for good order and discipline,” he said. “I don’t know what year this is going to get done — hopefully it’s this year — but the one thing I’m 100 percent confident in is we are going to win and the opposition is going to lose. This will happen.”

Col. Don Christensen, USAF (Ret), quoted here in The Hill

Why was this case tried in a military court?

A military court in Russia has sent two civilian women to prison on terrorism charges. Details here. Human rights norms strongly disfavor the trial of civilians by military courts.

Bad paper vets: time to take to the streets?

“I think if veterans with bad paper are going to succeed in their campaign, which they must, it’s going to take organizing and getting out in the streets.”

Yale Law School Prof. Michael Wishnie, 

quoted here by Stars and Stripes

Military courts urged for terrorism cases in [guess where?]

Marine Le Pen, who lost in the recent race for President of France, has urged that military courts be revived for terrorism cases. Excerpt:

“There should probably be a dedicated jurisdiction. 

“Why not the equivalent of the former Cour de sûreté de l'État (State Security Court)? Since terrorism is an act of war. 

The State Security Court was a special judicial body which existed from the 60s to the 80s and it included two military officers, with someone of the rank of a General working as one of the three judges.

Human rights jurisprudence strongly disfavors the trial of civilians in military courts.

 

Military justice and the Charter

Canada's military summary trial process is disturbingly and dangerously out of date with contemporary values of law, liberty, and legitimacy. It unnecessarily exposes Canadian military personnel to increased vulnerability. As the Supreme Court stated in Suresh v. Canada, “the greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter.”

http://thechronicleherald.ca/opinion/1503452-charter-rights-are-ignored-in-military-justice-system

Stillman v. H.M. The Queen, SCC No. 37701

Of possible interest to readers of Global Military Justice Reform: the motion for intervention in support of the application for leave to appeal to the Supreme Court of Canada in Stillman v. H.M. The Queen, SCC No. 37701, filed by Ottawa attorneys Michel W. Drapeau and Joshua Juneau on behalf of the editor. It is available here. At issue is whether the military nexus test must be met in order for a court-martial to exercise jurisdiction over offenses under § 130(1)(a) of the National Defence Act. The decision of the Court Martial Appeal Court can be found here.

Why is this case in the military justice system?

The Associated Press reports that a U.S. Air Force enlisted man has been charged with murder in connection with the death of his infant son in South Dakota. Murder is a felony in South Dakota (as it is everywhere else). If the offense was committed on property over which the federal government has exclusive jurisdiction, why isn't it being tried in federal district court? If it was committed off base or on concurrent jurisdiction property, why isn't it being tried in state court?

Yes, Solorio permits this, but is it right?

Interesting if true

Egypt is reportedly stopping its practice of sending civilians to military courts for trial. Excerpt:

Authorities in Egypt have decided to stop referring civilians to military courts, in an apparent response to pressure from the opposition, the semi-official Al Ahram newspaper reported Thursday. 

Around 12 000 civilians have been tried before military tribunals over the past seven months, according to local human rights activists. 

Unlike with ordinary courts, verdicts passed by cannot be appealed.

Human rights norms strongly disfavor the trial of civilians by military courts. 

Falana calls for updating of archaic Nigerian military justice system

Femi Falana, SAN

Femi Falana, a leading human rights practitioner in Nigeria, has issued a strong call for modernization of the country's military justice system here. Excerpt:

Mr. Falana, a Senior Advocate of Nigeria, maintained his position that the Armed Forces Act is not in line with the human rights act, and was enacted under a military dictatorship in 1993 under President Ibrahim Babangida military rule. 

“The rules of procedures in military courts in Nigeria was borrowed from the United Kingdom in 1972. In my submission, those rules of procedures in the UK have been changed, have been modernised in line with the human right[s] act of the United Kingdom in 1986. 

“The Armed Forces Act does not reflect a democratic dispensation. To worsen the situation with respect to procedure section 2 of the Administration of Criminal Justice act 2015, section 2 sub section 2 has excluded the application of this law,” he said.”

“We are left with the procedure that has been abandoned in the United Kingdom,” he added.

The human rights lawyer had submitted a memorandum tagged ‘Military Justice Negates” to the judicial commission. 

*   *   *

Mr. Falana then informed the panel about ineffective trials before military courts stressing that one can hardly get justice because of the ”command influence in Nigeria military system.”

“What I mean is the Chief of Army Staff is the only commanding officer allowed by law to set up a panel, appoint the members of the court and when they finish, like the case of soldiers who were charged with mutiny. The army chief set up a panel, they tried them and the judgment of the report will be sent to the chief of army staff to consider to review the report in his own wisdom.

“What is done in England, apart from the trial over simple offences which can be handled by commanding officers, high court judges assisted by assessors who are military officers are invited to preside over military courts because the judge may lack military knowledge,” he said.

Mr. Falana also highlighted other rights the armed forces violated.

‘Undue interference in trials by members of the military court is one. Once you are charged before a military court, no bail is granted.”

He also talked about secret trial of military personnel.

“Trials are conducted in secret, that is not in line with section 364 of the Nigerian Constitution,” he said.

Jadhav Case (India v. Pakistan): International Commission of Jurists Q&A

The International Commission of Jurists has just released a set of questions and answers on the International Court of Justice's Jadhav Case (India v. Pakistan). There is a link to the Q&A in the NGO's website press release. Excerpt:

12. Under what provisions of the law was Kulbhushan Jadhav tried in Pakistan? Are proceedings of Pakistan’s military courts compatible with international standards?

According to military sources, Kulbhushan Jadhav was tried under the Official Secrets Act, 1923, for “espionage and sabotage activities against Pakistan”. Evidence against Kulbhushan Jadhav includes a “confession” that was later made public and broadcast on Pakistani media.

Pakistan’s Army Act, 1952, allows military courts to hear cases that arise out of the Official Secrets Act. Contrary to media reports, Kulbhushan Jadhav has not been tried pursuant to constitutional amendments that give military courts additional powers to try people accused of belonging to proscribed organizations who commit terrorism-related offences.

Pakistani military courts are not independent and the proceedings before them fall far short of national and international fair trial standards. Judges of military courts are part of the executive branch of the State and continue to be subjected to military command; the right to appeal to civilian courts is not available; the right to a public hearing is not guaranteed; and a duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied.

(Footnotes omitted.)

A funny thing happened on the way to the inquiry

Femi Falana, SAN

Nigeria has created a 7-member commission of inquiry to look into allegations of human rights violations by the Army. Now a number of soldiers who were convicted by courts-martial (and whose cases are on review at the Court of Appeal) have approached the commission requesting that it recommend them for presidential clemency. The government says the panel has no jurisdiction to consider that request. Details here. Excerpt:

Meanwhile, with consent of all parties, the panel said it would hear other petitions by [the soldiers' counsel, Femi] Falana, including one alleging gross violation of human rights by the military justice system, in Maiduguri, Borno State, where the panel's North-East sitting is billed to take place.

Israeli decision ends draft exemption of ultra-Orthodox

Haaretz reports:

The High Court of Justice struck down on Tuesday evening the law that regulates the exemption of ultra-Orthodox Jews from compulsory military service so long as they are enrolled in religious studies at a yeshiva. 

An expanded nine-justice panel of the court headed by outgoing Supreme Court President Miriam Naor ruled eight to one, with Justice Noam Sohlberg dissenting. The justices' majority opinion agreed with the petitioners' position that the law perpetuates inequality between secular youths who are required to enlist in the army and religious youth who are exempted. The petition had been filed by the Movement for Quality Government.

Welcome new contributor Joshua Grubaugh

Global Military Justice Reform is delighted to welcome Joshua Grubaugh as a contributor. Joshua previously served in the U.S. Army's Defense Appellate Division. Welcome aboard!

Mens rea reform and the military

The Court of Appeals for the Armed Forces (CAAF) has spent the last two terms mired within the UCMJ, determining what constitutes the proper mens rea for various offenses due to imprecise drafting by Congress, the president, and commanders. The CAAF has twice found issue with general orders and Article 92, looked at maltreatment in Article 93, and at communicating a threat in Article 134. Next term, the CAAF will look at negligent dereliction of duty within another section of Article 92.

“Few areas of criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime." United States v. Thomas, 65 M.J. 132, 133 (C.A.A.F. 2007) (citing United States v. Bailey, 444 U.S. 394, 403 (1980). Yet the Supreme Court’s opinion in Elonis set the CAAF on this path, ensuring that in the absence of clear intent of Congress (or the president or a superior officer), military members cannot be found guilty unless the fact-finder determines they acted with at least a reckless state of mind.

In the background to these cases are mens rea reformers, pushing to heighten what constitutes a guilty mind. While these reforms mostly target the administrative state and public welfare offenses, they would also include traditional crimes recognized at the common law. Even though these reforms have failed to take hold within Congress, the efforts appear to have reminded courts of long-standing precedents, causing this recent reexamination of mens rea.

If Congress wants to maintain more control of the UCMJ, it should address the implication of Elonis and these CAAF decisions the next time it updates the UCMJ. Congress could either clearly dispense with mens rea for some crimes, or include a default method of interpretation to gap-fill the mens rea when a statute is otherwise unclear. Currently, the UCMJ is a mishmash of common law and modern crimes, some with imprecise mens rea terms. It also contains longstanding military specific offenses. This sometimes leads to confusing results even at the CAAF, such as in Caldwell, where the Court held maltreatment was a general intent crime that did not require appellant acted recklessly. While this opinion hinted at a military-specific exception to the mens rea requirement, the opinion did not make that holding explicit. Subsequent cases have juggled Caldwell’s nod to general intent with the more modern concepts of recklessness, knowledge, intent, and negligence that underpin mens rea reforms.

In any case, the CAAF’s recent grant indicates it will not be slowing down any time soon. Perhaps in the near future, the CAAF may even examine sexual assault by bodily harm in Article 120 or conduct becoming an officer in Article 133. Hopefully Congress steps in soon to make its intent known, otherwise the CAAF will be stuck cleaning up this mess. 

Why is this case being investigated by a military court?

A Lebanese film director who visited Israel to make a movie has been ordered to appear before a military tribunal. Details here. Lebanon is among the countries that continues to use military courts to try civilians, in violation of human rights norms. The filmmaker said:

"I am profoundly hurt. I came back to Lebanon with a prize from Venice. The Lebanese police have authorised the broadcast of my film (The Insult). I have no idea who is responsible for what has happened. We will find out at court who is behind this affair."

Conscientious objection in South Korea

Here's a new one. The Korea Herald reports that a judge has acquitted two Jehovah's Witnesses accused of avoiding military service on the ground that the government has been negligent in not providing some alternative form of national service. Excerpt:

Conscientious objectors have been uniformly sentenced to 18 months in prison. 

“Korea was presented with specific measures to adopt an alternative military program in 2007 and five relevant legislative bills, but all of them were discarded without being discussed,” the judge said. 

“If they were sufficiently reviewed, the country could have enacted a law (on the alternative service system) and implemented it, but that didn’t happen, because of the country’s negligence,” he said, addressing the need to solve the “unconstitutional state” by establishing an alternative military program.

This year alone, more than 30 conscientious objectors have been acquitted. But the Supreme Court maintained that conscientious objection is illegal, overturning the acquittals on 16 cases this year.

Still, there are rising hopes for a change.

Both nominees for chief justices at the Supreme Court and the Constitutional Court signaled at their support for adopting an alternative military service program in the country.

The Constitutional Court ruled against conscientious objection twice, in 2004 and 2011, prioritizing national defense over individual rights. A decision has been pending with the court since a petition was filed in 2011.

Now there's a court with what President Lincoln called "a case of the slows." 

Judge Silliman's recusal: two views of the D.C. Circuit's ruling

On August 9, 2017, the United States Court of Appeals for the District of Columbia Circuit ruled in KSM's case that Judge Scott Silliman of the United States Court of Military Commission Review should not have sat on the case because, before being named to the bench, he had expressed a view as to the accused's guilt. Major General (R) Charles J. Dunlap Jr., who teaches at Duke Law School, criticizes the decision here on Lawfire, and Prof. Steve Vladeck of the University of Texas Law School (and Global Military Justice Reform contributor) replies here on Just Security.

As one part of his argument, Charlie writes:

Do we really think there are authentically qualified persons ‘out there’ who have never commented on the guilt of KSM at one point or another – particularly after his own admissions? Think about it: what kind of person active in the national security law space has never commented about the 9/11 conspirators at some point over the years? 

Do we really want to chill the pre-appointment expression of law professors and others who might make ideal jurists? Do we need to stop recording classes out of fear that a student may make a comment in an academic setting that could come back to haunt her or him years later in a completely different context? 

More fundamentally, do we need to make accommodations for especially notorious cases that arise in the context of an ongoing armed conflict? As the late Supreme Court Justice William Rehnquist put it: 

"In wartime, reason and history both suggest that this balance shifts to some degree in favor of order – in favor of the government’s ability to deal with conditions that threaten the national well-being. It simply cannot be said, therefore, that in every conflict between individual liberty and governmental authority the former should prevail."

In short, not only do I believe the D.C. Circuit’s opinion was legally wrong, it also sets a precedent that does not serve justice. It is a facile and shallow analysis of an issue that has graver implications than the court seemed to have even recognized. It is all well and good for judges to assess what other judges do as judges, but it is wrong for judges to attempt to chill the pre-appointment protected speech of law professors, particularly when doing so intrudes upon the confirmation role the Constitution allocates to the Senate, not the Judiciary.

Steve replies:

Charlie pivots from his problematic recusal analysis to a broader claim—”that this is another example of a court being indifferent to the chilling effect of its ruling on the First Amendment activity at a time when the persons who engaged in it were not government officials.” In essence, Charlie is suggesting that the D.C. Circuit’s analysis will chill law professors (and other members of the pool of putative candidates for future CMCR judgeships) from publicly opining about the military commissions, lest those statements be used to force their recusal in subsequent proceedings—and that this poses grave concerns for academic freedom. 

This claim strikes me as deeply unpersuasive. Academic freedom is not, as Charlie suggests, an immunity from downstream consequences for statements academics make in their academic capacity; it is far more specifically about protecting their ability to remainan academic, without sanction, despite expressing unpopular views or pursuing unpopular lines of scholarly research or other inquiry. If I say something as a law professor that formally or functionally disqualifies me from consideration for some other, non-academic position, them’s the breaks. Otherwise, on Charlie’s view, if I made public statements as a law professor that, for example, would disqualify me from receiving a security clearance, the security clearance rules would therefore raise academic freedom concerns. Not so much, methinks. 

Finally, Charlie closes with an in terrorem argument—asking (rhetorically) whether “we really think there are authentically qualified persons ‘out there’ who have never commented on the guilt of KSM at one point or another—particularly after his own admissions,” and whether “we need to make accommodations for especially notorious cases that arise in the context of an ongoing armed conflict?” Charlie appears to think that the answers are “no” and “yes,” respectively, but this has things entirely backwards. I can think of dozens of leading national security law scholars and practitioners who, I’m willing to bet, have never publicly offered an opinion on the guilt or innocence of the 9/11 defendants. To be sure, I’m not one of them, but it’s not like I’ve been waiting by the phone for my CMCR nomination… 

More importantly, the idea that “we need to make accommodations” for the 9/11 trial (here, in favor of allowing a judge who has publicly taken a position on the guilt of the defendants to hear an appeal in their case) is the very last thing that the 9/11 trial needs. Part of why the military court recusal rules are broader than the civilian court rules on which Charlie hangs so much of his analysis is because the former tribunals don’t have the same structural independence as the latter, and therefore raise far more serious legitimacy and fundamental fairness concerns. After all, recusal is not just about actual impropriety; it’s also about the appearance thereof. Why anyone would want to risk having a conviction in the 9/11 trial tossed (or, worse, not) because of the participation in a pre-trial interlocutory appeal of a judge who expressed such a public opinion is beyond me.

For your military law bookshelf

U.S. Circuit Judge Evan J. Wallach of the United States Court of Appeals for the Federal Circuit has a timely new book: The Law of War in the 21st Century, published this month by Carolina Academic Press. Details here. From the publisher's note:

This book is designed to teach both law students and military professionals the underlying principles governing the law of war, and how to apply them in various wartime settings. Those applications include means and methods of warfare, use of precision and fully autonomous weapons, cyberwar, treatment of captured combatants and civilians, and treatment of protected places and property. The book also covers specialized issues such as belligerent occupation, nation building, warfare by international organizations, neutrality, ending wars, and the procedural rules and substantive issues in war crimes trials. A chapter on decision-making in wartime discusses command responsibility and gives the student a necessary taste of the underlying reality of combat. Appendices include four non-U.S. law of war manuals not commonly available in English (including the Russian Federation’s), a survey of the law of war in U.S. history, and all or substantial portions of important cited cases. A general course in public international law is not necessary for a student to understand and apply the contents of this book.

Watch for the Teacher's Manual as well.

Congratulations to the author.

Obituary of a litigious military lawyer in Lesotho

The Lesotho Times has this obituary of Brig. Bulane Andrew Sechele, who died a violent death earlier this week. It's quite a tale. Excerpt:

BRIGADIER Bulane Andrew Sechele's death in Tuesday's gun battle which also claimed the lives of Lesotho Defence Force (LDF) commander the LDF Lieutenant General (Lt Gen) Khoantle Motṧomotṧo and Colonel Tefo Hashatsi at Ratjomose Barracks, brought to an end a long and somewhat controversial military career dating back to 1996 when he joined as a junior soldier occupying a rank of Private. 

Also a lawyer by training, Brig Sechele rose through the ranks and he first gained public attention for his work in the army's legal department in 2010 where he served as a prosecutor in the Court Martial which tries soldiers on disciplinary and criminal cases that are defined under the Lesotho Defence Force Act of 1996.

From the glass-enclosed newsroom high above Global Military Justice Reform plaza

Global Military Justice Reform is double-barreled: it includes both "posts" and "comments." Posts are written by the editor and the line-up of contributors from around the world. Their names appear on the home page. All posts must be signed.

One of the fun parts of blogging and editing is the selection of a suitable illustration. Contributors typically select their own. Editing is ordinarily confined to style (which we try to keep consistent) and punctuation. We probably could do a better job of linking to past posts on a topic as well as inserting hyperlinks.

The blog does not have a daily or weekly quota (it's not like issuing parking tickets). There are days when there is literally nothing worthwhile to report, but that is infrequent. Then again, there are days when there is no end of newsworthy developments. On those days readers may see as many as five posts.

Comments can come from anyone. They are moderated by the editor, and although the software permits commenters to write under any name or anonymously, comments that are anonymous or employ a pseudonym do not pass the test and are deleted.

There are costs and benefits to this policy. The cost is that readers from time to time miss out on some worthwhile insight. The benefit is that comments tend to be more responsible and better thought out than they may be if anonymity were permitted. It's a trade-off, but it's one that seems to make sense in the interest of maintaining the highest possible quality and civil tone on the blog. Periodically this policy is restated. At times that is done because someone has attempted to post a comment that is worthwhile but anonymous, and the hope is that the reminder will lead that person to re-post using his or her real monicker.

We have seen a small uptick in spam comments. These are mostly just a nuisance for the editor but occasionally they are fun to read, in a Theatre-of-the-Absurd kind of way. If a particularly good one comes along the editor may post it for readers' amusement.

Finally, the blog's built-in (free) analytics software tells us a little about where are readers are from and what they are most interested in. As regular readers know, we try to spot it when there is a "hit" from one of the dwindling number of jurisdictions from which we have not yet heard. Since the list now stands at 179, this happens less and less frequently. (Still waiting for Nauru, for example.) Some of the numbers are counterintuitive and suggest that computer programs rather than human beings are at work. This week, for example, the analytics report that hits from Russia were double those from the United States. We'll continue to boast about the total (currently 469,916 since the beginning in January 2014), but the numbers must unfortunately be taken with a grain of salt, given what we know.

The editor hopes readers, contributors and comments have had a safe and rewarding summer (the editor et ux. got to view the eclipse, among other things). Autumn beckons.

Thanks for your interest. If you have any suggestions, please post a comment. (Real names only, please. See above.)

HM Government will review whether serious crime should be tried in the Court Martial

Lord Morris of Aberavon tabled a question in the House of Lords today which was asked by Baroness Smith of Basildon, 'to ask Her Majesty’s Government what assessment they have made of the procedures for trying members of the armed forces for serious crimes such as murder; and whether they intend to consult on possible improvements to those procedures.'

In response Earl Howe, Minister of State for Defence confirmed that HM Government would review the matter before the Armed Forces Bill 2020.

The full text of the exchange can be found here.

Australia's Gaynor case

Whether we agree with their views or not, every member of Australian society should be able to engage in political debate without fear of retribution by the state. That includes public servants and those enlisted in the armed forces. In refusing to hear [ADF ex-Major Bernard] Gaynor's appeal, the High Court has missed a significant opportunity to protect freedom of expression in this country. Our democracy is poorer for this omission.

From this op-ed by John Wilson and Kieran Pender in

 The Sydney Morning Herald

ECtHR on judicial independence

From the decision of the European Court of Human Rights in Mikhno v. Ukraine:

A. Independence and impartiality of the courts

[158] The Government submitted that the military courts were sufficiently independent and impartial, and that there had been no violation of the applicants’ rights in this respect. According to them, the national law contained sufficient guarantees of the independence of the military courts. In particular, military court judges, like civilian judges, were first appointed to their posts by the President of Ukraine for a five-year term and, following its successful completion, elected by the Parliament of Ukraine permanently. Promotion, disciplining and removal from office of the military court judges were governed by the same law as that applicable to civilian judges. The funding of the military courts was managed by the State Judicial Administration in cooperation with the Ministry of Defence from a separate line of the State budget expressly dedicated to the funding of the military courts, while the Supreme Court, which acted as a court of appeal in the present case, was fully independent of the executive in the management of its own budget. The applicants also did not present any evidence of subjective bias on the part of any of the judges. 

[159] The applicants disagreed. They submitted that the military court judges, being military servicemen, had had no way of being independent and impartial, and had in fact acted in the interests of the Armed Forces and the Ministry of Defence. In particular, they had exonerated the high-ranking military officers from criminal liability for their omissions in the organisation of the air show. 

[160] The Court would state at the outset that the right to a fair trial, of which the right to a hearing before an independent tribunal is an essential component, holds a prominent place in a democratic society (see, in particular, Miroshnik v. Ukraine, no. 75804/01, § 61, 27 November 2008). In order to establish whether a tribunal can be considered “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures, and to the question whether the body presents an appearance of independence. In this latter respect, what is at stake is the confidence which such tribunals in a democratic society must inspire in the public and, above all, in the parties to the proceedings. In deciding whether there is a legitimate reason to fear that a particular court lacked independence or impartiality, the standpoint of the party to the proceedings is important without being decisive. What is decisive is whether the party’s doubts can be held to be objectively justified (see, mutatis mutandis, Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, pp. 1572-73, § 71; Cooper v. the United Kingdom [GC], no. 48843/99, § 104, ECHR 2003-XII; and Miroshnik, cited above, § 61). 

[161] Turning to the present case, the Court reiterates that the proceedings at issue concerned the determination of the applicants’ civil claims against the Ministry of Defence. These claims were examined by the Central Region Military Court of Appeal at first instance and reviewed by the Military Panel of the Supreme Court contemporaneously with the determination of the criminal charges against military officers indicted of negligent acts resulting in the loss of the lives of the applicants’ relatives. 

[162] In the case of Miroshnik v. Ukraine, cited above, the Court has previously found that the domestic military courts lacked independence in determination of a civil claim lodged against the Ministry of Defence in proceedings, which concerned the allegedly unlawful dismissal of a military serviceman. The Court based the relevant findings, in particular, on the domestic statutory provisions, according to which the military court judges were military servicemen on the staff of the Armed Forces subordinate to the Ministry of Defence. In addition to that, applicable law at the material time allocated to the Ministry of Defence a number of tasks relating to court administration and provision of the judges with housing (see Miroshnik, cited above, paragraphs 63-64). 

[163] With the new Judicial System Act having been adopted before the beginning of the proceedings at issue in the present case, these findings are of limited value in examining the applicants’ complaint. In particular, although according to the new law the military judges remained military servicemen, the Ministry of Defence lost practically all of its previous court administration functions to the newly created State Judicial Administration and the Supreme Court’s administrative staff. In addition, unlike in the Miroshnik judgment, which concerned a purely civil dispute, the present applicants’ claims were lodged in a very different context. In particular, they were closely connected to the determination of criminal charges related to breaches of service duty imputed to several military officers. 

[164] The Court notes that the practice of using courts staffed wholly or in part by the military to try members of the armed forces is deeply entrenched in the legal systems of many member States (see, for instance, Morris v. the United Kingdom, no. 38784/97, § 59, ECHR 2002-I). According to its current jurisprudence, unlike in cases relating to the trials of civilians (see, for instance, Öcalan v. Turkey [GC], no. 46221/99, § 113, ECHR 2005-IV, and Maszni v. Romania, no. 59892/00, §§ 53-60, 21 September 2006), there is nothing in the provisions of Article 6 of the Convention which would in principle exclude the determination by military courts of criminal charges against service personnel (see, for instance, Cooper, cited above, § 110, and Mureşan v. Romania (dec.), no. 37702/06 § 19, 16 December 2014). 

[165] There is a tendency in international human rights law to urge States to act with caution in using military courts and, in particular, to exclude from their jurisdiction determination of charges concerning serious human rights violations, such as extrajudicial executions, enforced disappearances and torture (see paragraphs 106-108 above). However, the proceedings at issue in the present case cannot, in the Court’s view, be approached in the same manner as the aforementioned serious intentional human rights violations, which cannot be covered by ordinary military functions. In particular, the present case concerned an accident, resulting in very serious but unintentional damage. The servicemen involved were accused of negligent performance of their duties, the scope of which was in dispute to be resolved by the courts. The criminal limb of the present proceedings was therefore very closely connected to the defendants’ military service. In these circumstances, the Court considers that the referral of the criminal charges and, regard being had to the domestic legal tradition, the related civil claims to a military court for their contemporaneous examination, is not as such incompatible with the Convention. Nevertheless, the Court must look at the composition of the respective military courts and examine the statutory and practical safeguards enabling them to act independently and impartially in resolving these claims (see, mutatis mutandis, Yavuz v. Turkey (dec.), no. 29870/96, 25 May 2000, and Tanışma v. Turkey, no. 32219/05, §§- 81-84, 17 November 2015). 

[166] The Court reiterates that in its previous cases relating to the determination of the independence of military servicemen engaged in administering justice it has had regard to a number of elements determining their status and the manner of operation of the military courts. These elements included the quality of the procedure under which the military courts operated, in particular as regards confidentiality of deliberations and availability of review by an ordinary court, availability of appropriate training for officers involved in the adjudication of cases; the manner of their appointment, promotion and discipline (in particular, whether those officers remained subject to army appraisal reports and whether those reports could evaluate the quality of their judicial decision-making), and other elements (see, for instance, Maszni, cited above, § 55; Bucur and Toma v. Romania, no. 40238/02, § 140, 8 January 2013; and Mureşan, cited above, §§ 20-22). 

[167] Turning to the circumstances of the present case, the Court reiterates that the applicants’ principal argument concerning lack of independence of the military courts related to the fact that the military judges were military servicemen of the officer rank (see applicable provisions of the domestic law in paragraphs 78 and 99 above). According to the applicable law, these judges were on the staff of the Armed Forces subordinate to the Ministry of Defence. However, in examining the practicalities of their status, the Court observes that nothing in it suggests that they reported on their performance to any military official. In fact, the applicable law expressly prohibited military judges from carrying out any duties other than adjudication of cases. Eligibility criteria for a post of a military judge (apart from being a military officer) and procedures concerning their appointment, promotion, disciplining and removal were analogous to those in place for their civilian counterparts. Nothing in the relevant legal framework or the applicants’ submissions indicates that either the Ministry of Defence or any career military officers were involved in these procedures. 

[168] The Court further notes that, according to the applicable law, military courts were integrated into the system of ordinary courts of general jurisdiction. They operated under the same rules of procedure as the ordinary courts in determination of criminal cases. This procedure provided for the applicants the same opportunities to participate in the proceedings, as would have been afforded to them in civilian courts (see paragraphs 93 and 95 above). 

[169] As regards court funding and court administration responsibilities, the Supreme Court, which incorporated the Military Panel, was independent in these matters. Primary responsibility for administering inferior military courts was vested in the State Judicial Administration. Although the Ministry of Defence retained some authority in this matter as well as in taking care of certain benefits for the military court judges (see paragraphs 98 and 99 above), the Court considers that, absent any substantiated arguments to the contrary, such limited authority in itself does not suffice to cast doubt on the impartiality and independence of the judges of the military courts (see, mutatis mutandis, Baranova v. Russia, (dec.), no. 72757/01 of 9 November 2004). 

[170] The Court next notes that, as far as the applicants submitted that acquittal of the senior military officers in the “organisers’ case” was indicative of the judges’ bias, it is not open to them to cite this argument, as they did not lodge any civil claims within the framework of these proceedings. Absent any other indications that there existed a special relationship between the defendants and the judges engaged in adjudication of the applicants’ civil claims or any other substantiated arguments by the applicants concerning the judges’ objective lack of independence or subjective bias, the Court considers that there is no basis for it to conclude that the military judges in the present case lacked structural independence or otherwise acted in the interests of the Armed Forces or the Ministry of Defence when adjudicating the applicants’ civil claims. 

[171] In view of all the above, the Court considers that the applicants’ complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

The court's decision became final on January 30, 2017.